2005-05-06 Answering Brief Re Ainaola Development

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Pele Defense Fund v. Puna Geothermal Venture, 9 Haw.App. 143, 147, 827 P.2d 1149, 1152 (1992). In Pele Defense, claims that a geothermal permit condition were "null and void" were held barred by res judicata when previously litigated. Likewise, in the instant case, ADC's 12.5-year old claim that the amount of Condition No. 7 is void ab initio are barred by res judicata. Res Judicata applies to constitutional claims. The appeal should be dismissed and denied. B. APPELLANT ADC FAILED TO CARRY ITS BURDEN OF PROOF; THE COMMISSION'S FINDINGS ARE NOT CLEARLY ERRONEOUS ADC states the substantive issue on appeal as follows: "There was no evidence on the record, as a whole, to support the Commission's decision to retain the condition in Use Permit No. 106 requiring the $6,000,000 improvement of Ainaloa Boulevard." Opening Brief, pp. 17-18. This misapprehends the nature of the evidence, and the burdens of proof before the Commission. First, as stated in the foregoing, the nature of the Planning Commission's review was not whether to"retain the condition" on road improvements, but whether, in the Planning Commission's inherent discretion, the condition might be removed, or reduced in cost, if the permit's life were extended. Condition No. 7 had existed without objection for 12.5 years, and was not expiring, unless the entire Permit did. ADC was asking for an extension of time to perform conditions, while also asking for betterments in its position. There is no statute or rule requiring a contested case hearing for this requested betterment. In fact, the Planning Commission had no obligation to further extend the life of the permit, let alone give up road improvements if the permit were extended. Even assuming that some contested case right applies, "Except as otherwise provided by law, the party initiating the proceeding shall have the burden of proof, including the burden of 17